Unpaid Overtime

Failure to pay required overtime is an enormous problem in California and throughout the country.

California overtime law is controlled by the Labor Code and by the California Industrial Wage Commission (“IWC”). The specific rules are set forth in the IWC’s 16 Wage Orders, which govern various occupations.

California law provides for the following overtime pay (Labor Code §510):

Time and a half for:

1. Over 8 hours in one workday;
2. Over 40 hours in one work week;
3. First 8 hours of the 7th consecutive day in one workweek.

Double time for:

1. Over 12 hours in a workday;
2. Over 8 hours on the 7th consecutive workday.

Thus, California requires time-and-a-half overtime pay for all hours in excess of 8 hours per day, in addition to overtime for hours worked in excess of 40 hours per week. It provides a double-time “bonus” for hours worked in excess of 12 hours per day and for hours worked over 8 on the seventh consecutive day (the “seventh day bonus”). When an employee works more than 40 hours in a week and also has days worked in excess of 8 hours per day, the employee is entitled to whichever method of calculation yields the most favorable pay to the employee.

Federal law, under the Fair Labor Standards Act (“FLSA”), provides for overtime worked in excess of 40 hours per week. Since California law provides greater protection to the employee, if you are a California employee, you are covered by the Labor Code rather than the FLSA. Employees in other states are covered by the FLSA.

If you have not been paid overtime and you are not an independent contractor, an exempt employee, or subject to the specific exceptions set forth in the Wage Orders, you may be entitled to overtime for work you have done in excess of 8 hours per day or 40 hours per week. In addition, employees who are owed overtime pay may also be entitled to interest, penalties, and attorney’s fees paid for by the employer.

Unscrupulous employers sometimes try to avoid overtime pay by misclassifying their employees as independent contractors, as exempt, or as subject to exceptions – such as the managerial exception – which do not apply to the work you are doing. The work you actually perform - not what the employer calls your position – determines whether you are entitled to be paid overtime.

You may have reason to suspect your employer is not paying for overtime, if you notice the following:

• You are told you are not entitled to overtime because you are called a “Manager” or “Executive” even though the work you do does not involve performing management functions more than 50% of your time.
• You are told that you are not entitled to overtime because you are an “Independent Contractor” even though you have no other jobs.
• Your employer frequently asks you to work through lunch breaks or other breaks.
• Your employer asks you to arrive at work earlier than your scheduled work time to do light work.
• Your employer requests you work a few extra hours at the end of the week and asks you to leave work earlier at the beginning of the new week.
• Your employer tells you to take work home.
• Even though you do not actually have to show up at work, your employer requires you, without pay, to remain on “standby” or on-call for work by wearing a beeper or carrying a cell phone, or staying within a certain travel distance of work.

If you believe that you are entitled to overtime wages or pay which you have not received, please call us immediately at (888) 445-2334 or use our email form and contact us for a free consultation with one of our attorneys: Randall Aiman-Smith, Reed Marcy, or Hallie Von Rock. At Aiman-Smith & Marcy all of our attorneys are experienced in the area of unpaid overtime.